Puerto Rico: Support Sodomy Law Repeal, Rape Law Reform
04/30/2002
SUMMARY
The Puerto Rican Senate is discussing amendments to its Penal Code. Local activists are pushing for the repeal of Article 103, which penalizes same-sex sexual relations, as well as for a more accurate definition of "rape".
ACTION
IGLHRC and local organizations ask for letters in support of those amendments.
Please write TODAY to:
- Hon. Eudaldo Baez-Galib
Presidente de la Comisión Jurídica
(President of Legal Commission) - Apartado 9023431, San Juan, PR 00902-3431.
Phones: (1) 787-724-2030 extensions 2493 to 2495 or (1) 787-722-1856.
Email: baezgalibe@microjuris.com
And please send copies to:
- Fundación de Derechos Humanos
- phamtom@caribe.net
- Movimiento Ecuménico Nacional de Puerto Rico
- menpri@fuerzahumana.org
SAMPLE LETTER
Dear Mr. Baez Galib,
We write to you in support of the following amendments to the Puerto Rican Penal Code submitted by non-governmental organizations like Fundacion de Derechos Humanos and Movimiento Ecumenico Nacional de Puerto Rico:
- To eliminate all references to gender and sexual organs involved in Articles 99 and 100 (rape);
- To eliminate altogether Article 103 (penalizing same-sex sexual relationships).
In the first case, Articles 99 and 100 define rape as an act that con be committed only against women, and only by penile-vaginal penetration. As the practice and theory of sexual rights evolves, it becomes evident that what constitutes a rape is the element of unwillingness on the part of the victim: to be forced (by any means) to indulge in any kind of sexual activity is rape.
Non-governmental organizations working with women, children, sexual minorities and prisoners--among other groups--can sadly testify that boys, transgender people and men are victims of rape in different circumstances. And sexologists will tell you that sexual activity, consensual and forced, among human beings involves much more than penises and vaginas: human beings are capable of sexualizing any part of their bodies as well as any instrument that they fancy, with the potential not only to express love and pleasure, but also, unfortunately, to inflict pain upon others. Rape is a very serious human rights violation; its definitions need to be inclusive of all its possibilities, to ensure justice and protection for all its possible victims.
In the second case, Article 103 of the current Penal Code penalizes "sexual relationships between people of the same sex", without reference to their being consensual or not. In the last 15 years, several countries around the world (from Ireland to Ecuador, from Australia to South Africa) have repealed similar legislation, recognizing that consensual sexual activity between adults of the same sex is a private affair that does not need to concern the State. In 1994, the United Nations Human Rights Committee in the case of Toonen vs. Tasmania stated that the existence of sodomy laws in that state "interfered with the plaintiff's privacy", and that the references to "sex" in anti-discriminatory provisions included in the International Covenant on Civil and Political Rights (Articles 2.1 and 26) should be read as inclusive of "sexual orientation". According to the Committee, the existence of sodomy laws was both a violation of the right to privacy and the right to be free from discrimination on the basis of sex.
We urge you to amend Articles 99 and 103 in such a way that allows you to make a compelling statement in favor of equality and dignity for all. The Puerto Rican Senate has the historic opportunity to get rid of legislation that is not only outdated but harmful, as these laws leave many unprotected in the face of serious human rights violations while condemning others who commit no crime at all.
Sincerely,
BACKGROUND INFORMATION
Article 103 of the Puerto Rico Penal Code penalizes "sexual relationships between people of the same sex or committing acts against nature with a human being" with 10 years in prison. The text came from the California Penal Code, which served as a model for the original Puerto Rico Code in 1902. Originally it penalized "acts against nature, committed with another human being or with a beast", with 1 to 10 years of imprisonment. In 1974 the Penal Code was reviewed. Sexual relationships between people of the same sex were considered a separate "crime" from that of bestiality, and punishment increased to a mandatory 10 year term. In 1992, proposals were submitted for elimination of Article 103, but failed.
Activists have been struggling for years against Article 103. On November 4, 1997, Reverend Margarita Sanchez (from Movimiento Ecumenico Nacional de Puerto Rico) turned herself into the Division of Sexual Crimes of the Department of Justice, confessing to have committed the "crime of sodomy the night before." San Juan District Attorney Ramón Muñiz Santiago declined to prosecute her. The District Attorney informed Ms. Sanchez that lesbians are incapable of committing sodomy since they lack a "virile member." He added that he would not prosecute two homosexual men under this statute because there would be no victim. On the same day, the Justice Department issued a press release refusing to prosecute the case; it claimed that Ms. Sanchez hada personal agenda in delivering her confession.
On February 1999, three homosexual couples (Ms. Sanchez and her partner, Mr. Jose Joaquin Mulinelli Rodriguez and his partner, Mr. Edgar Danielsen Morales and Mr. William Moran Berberena), together with the American Civil Liberties Union (ACLU), challenged the constitutionality of Article 103 in Court. The case is still pending before the Puerto Rico High Court.
IN THE LAW
The Puerto Rican Constitution protects against discrimination based on "race, color, sex, birth, origin or social status, political or religious beliefs" (Article 2.1). It also upholds the right to privacy (Article 8).
Unfortunately, Puerto Rico has a colonial relationship to the United States, and the latter has ratified very few of the widely-accepted international human rights instruments, and has failed to ratify the Interamerican Human Rights Convention. The United States has ratified the International Covenant on Civil and Political Rights (ICCPR). As noted above, the United Nations Human Rights Committee, in the case of Toonen vs. Tasmania in 1994, declared that the existence of sodomy laws violates the rights to privacy and the right to freedom from discrimination on the basis of sex. Thus, the existence of sodomy laws anywhere in the United States or in Puerto Rico violate obligations under the ICCPR.
It is also worthy to mention that the United States, regretfully, has not ratified the First Optional Protocol to the ICCPR, which allows the United Nations Human Rights Committee to receive and consider individual complaints from individuals alleging violations of the ICCPR within that State. Thus, individuals in the United States or Puerto Rico are not allowed directly to bring complaints of violations to the United Nations Human Rights Committee.
The Universal Declaration on Human Rights is considered binding by all states that are UN members (as the United States is). And the UDHR does protect the right to be free from discrimination and the right to equality before the law (Articles 1, 2 and 7), and the right to privacy (Article 12)
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